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Principal Life Insurance Co. v. Calloway

United States District Court, E.D. California

December 23, 2019

PRINCIPAL LIFE INSURANCE COMPANY, Plaintiff,
v.
RAYMOND CALLOWAY, et al., Defendants.

          ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR PERMISSION TO SERVE DEFENDANT J.D. FLORENCE BY PUBLICATION ORDER SETTING INITIAL SCHEDULING CONFERENCE (Doc. 39)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff filed this complaint in interpleader on February 1, 2019. (Doc. 1.) Since then, Plaintiff has experienced issues filing proof of service on certain Defendants, and only recently filed requests for entry of default or notices of voluntary dismissal as to the non-appearing Defendants. (See Docs. 18, 20, 24, 26, 27, 30, 31, 32, 33, 34, 35.) Plaintiff has still not served Defendant J.D. Florence, (see Doc. 35 at 2), and requests leave to serve Defendant J.D. Florence by publication, (Doc. 39). For the reasons stated below, the Court DENIES WITHOUT PREJUDICE Plaintiff's motion.[1]

         II. LEGAL STANDARD

         Rule 4 of the Federal Rules of Civil Procedure provides that proper service can be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). Therefore, California's statute for service by publication will govern whether such service is proper in this action.

         California Code of Civil Procedure § 415.50(a)(1) provides, in pertinent part, that “[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that . . . [a] cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.” California Government Code § 6060 requires that the summons be “published in a newspaper of general circulation for the period prescribed.”[2]

         Service by publication is appropriate only where, after reasonable diligence, the defendant's whereabouts and his dwelling place or usual place of abode cannot be ascertained. Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995). However, service by publication is a “last resort, ” so the courts require a plaintiff “to show exhaustive attempts to locate the defendant.” Watts, 10 Cal.4th at 749 n.5. “Reasonable diligence” in attempting to serve by other methods connotes:

[A] thorough, systematic investigation and inquiry conducted in good faith . . . . A number of honest attempts to learn defendant's whereabouts or address by inquiry of relatives, friends, and acquaintances, or of an employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessor's office, near the defendant's last known location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication. However, the showing of diligence in a given case must rest on its own facts and neither single formula nor mode of search can be said to constitute due diligence in every case.

Kott v. Superior Court, 45 Cal.App.4th 1126, 1137-38 (1996) (internal citations and quotations omitted). When attempting to effect personal service, a person attempting to effect service is not required to “exhaust all avenues of obtaining a current address” once he is informed that a defendant no longer lives at a residence. Ellard v. Conway, 94 Cal.App.4th 540, 545 (2001).

         III DISCUSSION

         A. Plaintiff's Motion Fails to Comply with Rule 4

         1. Plaintiff Has Not Established by Affidavit the Existence of a Valid Cause of Action Against J.D. Florence or that J.D. Florence is a Necessary or Proper Party.

         Under California law, “[f]or the purpose of service by publication, the existence of a cause of action is a jurisdictional fact.” Harris v. Cavasso, 68 Cal.App.3d 723, 726 (1977). “The requesting party must submit an affidavit containing a statement of some fact that would be legal evidence that the cause of action exists for the court to have jurisdiction to order service by publication.” Integon Preferred Insurance Company v. Camacho, No. 1:16-cv-01496-AWI-SAB, 2017 WL 1351704, at *2 (E.D. Cal. Mar. 24, 2017) (emphasis added) (citing Harris, 68 Cal.App.3d at 726)). “When jurisdiction is sought to be established by constructive service, the statutory conditions for such service must be strictly complied with or the judgment is subject to collateral attack.” Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 334 (1978). Thus, when applying for service by publication, the requesting party must attach an affidavit “containing a statement of facts to establish that a ‘cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action.'” Integon, 2017 WL 1351704, at *2 (quoting Cal. Code Civ. P. § 415.50(a)(1)).

         Here, Plaintiff's motion contains very little information regarding Defendant J.D. Florence, aside from the fact that he is a named defendant in the complaint. (See Doc. 39.) This is insufficient to justify service by publication. See Integon, 2017 WL 1351704, at *2. Plaintiff must attach an affidavit to the request for service by publication setting forth facts establishing a cause of action against Defendant J.D. Florence, or facts establishing that Defendant J.D. Florence is a necessary or proper party. See Id. (“The affidavit filed in support of the motion for substitute service must contain independent evidentiary support in the form of a sworn statement of facts to support ...


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